October 19, 2006

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts....

This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions...

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

Read the whole thing. I think Yoo overdoes it describing what a rebuke this is to the Supreme Court. The analysis in Hamdan relies heavily on the lack of congressional support for things the Executive was doing, so it makes sense to see the new legislation as providing the legislation the Court thought was needed -- responding to Hamdan, not slapping back at it. The question is: How will the Court respond now that the moderate ground for opposing the President is gone? To preserve the courts' role in the face of the new statute will take something more like what Yoo calls "cater[ing] to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations."

Yoo's phrasing makes me a little queasy here, because it suggests to its intended audience that there is something inappropriate about Congress disapproving of the Supreme Court's interpretation of statutes and passing new legislation to clarify the law. Even as someone who thinks that Yoo is probably right to assume that the majority in Hamdan went out of its way to impose its views onto the war on terror, and misread the statutes, I think this piece fosters a mistaken view of the relationship between courts and statutory law. This is precisely how the system should operate: the court interprets legislation, and if that interpretation goes beyond the realm that Congress deems permissable, Congress passes new legislation. This is the flipside of the point that when the Court construes the Constitution it is uniquely powerful because its actions cannot easily be undone. Here, they can be.

I don't disagree with Yoo's basic point, but his choice of words is unfortunate.

Yoo is writing from the perspective of the warrior engaged in the trench-warfare aspects of these debates. He's been demonized by those of opposing views, and obviously has no problem returning the compliment. Nothing surprising in the tone or content of his argument.

Ann asks: "The question is: How will the Court respond now that the moderate ground for opposing the President is gone? To preserve the courts' role in the face of the new statute will take something more like what Yoo calls 'cater[ing] to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations.'" I cannot imagine the SCOTUS trying to constitutionalize any aspect of the treatment of foreign combatants. That would truly be a remarkable power grab, and would certainly warrant the rhetoric that Yoo throws at the Court here. The first real test will come up in a slightly different context, if the circuits split on the treatment of the NSA program. The Detroit case is already in the Sixth Circuit; Judge Lynch has yet to decide the similar case pending in the SDNY; and there are undoubtedly others pending in other circuits as well. Standing issues in all of those cases provide an opportunity to duck the more difficult statutory and constitutional issues. Stay tuned to see whether the courts take the hint and follow that route.

The analysis in Hamdan relies heavily on the lack of congressional support for things the Executive was doing, so it makes sense to see the new legislation as providing the legislation the Court thought was needed -- responding to Hamdan, not slapping back at it.

I did appreciate the point of Yoo being in the trenches on this. After all, it was apparently his memos that emboldened the Admistration to essentially ignore the wording of FISA through an assertion of Executive power. And, indeed, he has been one of the most vocal proponents of this since early in the Administration.

Nevertheless, he brings something out that I hadn't really realized until now. In civics we are taught that each of the branches has some ways to limit the powers of the other branches, and that two branches working together can block the third.

Civics students are mostly taught that the primary way that the Judiciary is reined in is through appointment and, in egregious cases, impeachment. This is a significant other mechanism - jurisdiction. And that only really makes sense with lawyers and in law schools. Jurisdiction is granted by statute, enacted by the other two Branches, and can, therefore, in most instances, be withdrawn in a like manner.

I also find it interesting that the Judiciary would make this power grab at this point in time. It is almost as if they saw the other two Branches sqabbling over their respective powers, and thought to expand their own by appearing to mediate the dispute. Unfortuantely for them, they misread the situation as to the detainees, and have been suitably rebuked.

Which brings us to the FISA litigation. I would suggest that this legislative rebuke will make it less likely that the Judiciary will intervene and seriously attempt to rein in the Administrations TSP program, etc. Of course, if the Democrats win big next month...

could someone clarify, for those of us without law background, what if any implications this law potentially has for the suspension of habeas corpus for American citizens? Although probably unlikely in practice, does it not theoretically give the president the power to arbitrarily declare anyone an enemy combatant or terrorist, and then apply this statute? This is the major fear/buzz/freak in non-legal circles, but it doesn't seem to be mentioned here. Some clarification would be much appreciated!

Bruce: What do you picture the Democrats doing? Voting on things that the President will veto and that will be used against them in '08? Well, maybe they will make all kinds of gestures, knowing no one will have to see how their ideas work in practices.

This is the major fear/buzz/freak in non-legal circles, but it doesn't seem to be mentioned here. Some clarification would be much appreciated!

It was discussed here earlier, with the result that, as far as I recall, none of us could see how you could read the law to do that. If you read the wikipedia entry here, the entry states:

Section 948c of 10 U.S.C., as added by the Act, states, "Any alien unlawful enemy combatant is subject to trial by military commission under this chapter" - with "alien" defined in section 948a(3) as "a person who is not a citizen of the United States". The Act does not specify any provisions for trying unlawful enemy combatants who may be American citizens. There is disagreement over whether the Act's provisions could be applied to them as well since 10 U.S.C. sec. 948c does not expressly exclude the possibility.

What 948c actually says is that:

Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

And that's all it says. "Alien" in this context, means someone not a citizen of the US.

I suppose there might be some ambiguity on this point, but seeing as the military commissions only have jurisdiction to try offenses committed by alien unlawful enemy combatants -- the wiki even quotes this part -- it seems like it would be a real stretch to try and argue that they could try American citizens who are unlawful enemy combatants. They don't have jurisdiction.

I suppose it's possible that an argument could be made that if you have an offense committed jointly by alien unlawful enemy combatants and an American unlawful enemy combatant working in concert, then the military commission could exercise jurisdiction over the American as well as the aliens, since the underlying offense was committed by alien unlawful enemy combatants, just not solely by the alien unlawful enemy combatants. And that's not a wholly unreasonable suggestion. But given the lengths to which the statutory drafters went to emphasise that the courts are set up to try "alien unlawful enemy combatants," it would still be a stretch to claim that Americans could be tried under it.

However, none of us are expert in this field of law, and it is conceivable that the law could interact with other pre-existing laws somehow such that the result people are afraid of might come about.

Although probably unlikely in practice, does it not theoretically give the president the power to arbitrarily declare anyone an enemy combatant or terrorist, and then apply this statute? This is the major fear/buzz/freak in non-legal circles, but it doesn't seem to be mentioned here. Some clarification would be much appreciated!

Of course it does. And the law is clearly unconstitutional on its face as habeas can only be suspended in times of "rebellion or insurrection" and we are not facing that situation now.

Trial by military commission, no, but U.S. citizens can apparently be declared an illegal combatant and be denied habeas and tortured, the new law apparently allows.

Please, just take a minute or two and read the statute, before you start spouting off hysterically. The habeas provision is as follows (Sec 7(e)):

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

HMMMMM.

The military commissions habeas provision is 950j(b):

`(b) Provisions of Chapter Sole Basis for Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

Unless you can try American citizens under the military commissions, that's not going to work either.

As far as the "torture" goes, that's Sec. 6 (defining American treaty obligations under the Geneva conventions). I don't see that it has any particular limitation to unlawful enemy combatants, aliens, or anything at all -- I'm pretty sure lawful enemy combatants fall within its scope too. Indeed, I'm pretty sure everyone is within its scope. And it just prohibits certain conduct. Section 5 indicate that you can't independently call on the Geneva conventions as a source of rights, you can only call on them as implemented in American law (i.e. Sec. 6). This is actually pretty standard -- we do it with the Berne Convention on copyright too, and people have protested that what the Berne says and what we did in the copyright code aren't exactly the same thing.

In the immediate aftermath of 9/11 Bush could've gotten anything he wanted from a then obsequiously compliant Congress. For reasons never really explained Bush stopped short of asking for formal declaration of war. I surmise that restraint arose out a Karl Rove-type of political strategerie. Nevertheless, a properly worded war declaration from Congress would have comported with the way the Constitution anticipates these matters being handled. When one goes over the list of problems and criticisms that the Bush administration has encountered over the last few years, including the Patriot Act, Gitmo, NSA wiretapping, and military tribunals, it's hard to find one that wouldn't have been cut off at the knees by that properly worded war declaration. Failing to get it when he easily could have was Bush's worst mistake.

Quoting Yoo is like quoting Coulter for serious analysis. Yoo is not to be taken seriously as a legal analyst of anything but maybe the Mark Karr case. Serious constitutional lawyers can disagree about the limits of presidential power, but Yoo offers no serious analysis other than convuluted reasoning to meet his desired outcome of more power for the executive branch.

Yoo is a highly intelligent and trained legal analyst. You just don't like where he comes out. Try dealing with the arguments instead of plugging your ears and singing la, la, la. As such, you're point is worthless to me.

One notes that the clasue is "Cases of Rebellion or Invasion", not "insurrection". And that the clause does not specify "in the United States". Did we invade Afghanistan? Okay, there's your case of invasion.

Of course, one can argue that it is not the original meaning of the clause, that everyome understood "in the United States" to be included. That's fine. If the Left in this country has decided to go that way, though, let's start by applying original meaning to the term "Commerce . . . among the several States". And then we can go on to "cruel and unusual punishment" with regards to the death penalty. And then . . .

You wanted a living Constiution? Fine. Time to learn to live with one, Freder.

Zeb Quinn said..."In the immediate aftermath of 9/11 Bush could've gotten anything he wanted from a then obsequiously compliant Congress. For reasons never really explained Bush stopped short of asking for formal declaration of war ... a properly worded war declaration from Congress would have comported with the way the Constitution anticipates these matters being handled."

Well, even assuming that one CAN formally declare war on anything other than a nation state, which isn't nearly as apparent as you might imagine, the Constitution does not anticipate the President asking Congress for a declaration of war in order to respond when the country is already under attack. The power to declare war is, and ever has been, the power to take the country to war, not the power to defend a nation when war is upon it. So you look at, for example, the preamble to the Hague Convention, which explains the need for declarations of war in the following terms: "Considering that it is important, in order to ensure the maintenance of pacific relations, that hostilities should not commence without previous warning ... [And] [t]hat it is equally important that the existence of a state of war should be notified without delay to neutral Powers; [t]he Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war." The purpose of a declaration of war is to notify the party on the recieving end that they're about to get walloped, and to notify the world that you're about to wallop your neighbor. I think September 11th pretty vividly fulfilled both requirements.

Freder Frederson said..."'Alien' can include legal, permanent residents of the U.S. or even naturalized citizens if the U.S. strips them of their citizenship. That raises serious equal protection issues."

It does mean that resident and non-resident aliens can be declared unlawful combatants, but the power to strip a naturalized citizen of their citizenship is squeezed out of practical existence by virtue of Trop v. Dulles, a result universally accepted on one ground or another (either 8th Amdt. or ultra vires, both of which were offered by Warren).

Yoo is a highly intelligent and trained legal analyst. You just don't like where he comes out. Try dealing with the arguments instead of plugging your ears and singing la, la, la. As such, you're point is worthless to me.

Ann, do you honestly believe he's achieved the prominence he has because he's so damned intelligent and highly trained?

Or is it because he just so happens to espouse a radical theory of executive power which is highly convenient for Cheney and Bush?

If this is the best you can do in his defense, btw, he's probably an even bigger joke than I realized.

Doyle said..."Ann, do you honestly believe he's achieved the prominence he has because he's so damned intelligent and highly trained?"

Red herring. Yoo may have achieved prominence because of his connections to the present administration, but Ann was not defending his prominence, she was responding to dklittl, who questioned Yoo's credentials. ("Yoo is not to be taken seriously as a legal analyst"). Hence, red herring, unless you're suggesting that public prominence is the sine qua non of erudite legal commentary.

Although probably unlikely in practice, does it not theoretically give the president the power to arbitrarily declare anyone an enemy combatant or terrorist, and then apply this statute? This is the major fear/buzz/freak in non-legal circles, but it doesn't seem to be mentioned here. Some clarification would be much appreciated!

Freder's response: "Of course it does. And the law is clearly unconstitutional on its face as habeas can only be suspended in times of "rebellion or insurrection" and we are not facing that situation now."

As others have mentioned, Freder is wrong by statute. But he is also wrong on the Constitutional issue of whether or not denying habeas - for foreigners or Americans, would pass Constitutional review by SCOTUS. The answer is it already has. In 1942, Nazi U-boats dropped off 8 saboteurs with targets in Chicago and Detroit. 2 of the 8 were American citizens. They were caught and tried by a military tribunal after FDR's Administration held they were unlawful enemy combatants, operating out of uniform. By 9-0, in Ex Parte Quirin, SCOTUS held that habeas rights to not apply to unlawful enemy combatants in time of war. Their crimes are military, the court said, not civil, therefore they had no place in civilian court. Even those Americans working on the enemy side. William Douglas, the "Lion of Civil Liberties" remarked in 1962 that the decision was a "true no-brainer". Justice Jackson, who as AG led the effort to defend FDR handing over the German and American Nazis to the military - described it as a "great decision".

I guess the operative interpretation is the Constitution allows denial of habeas to civilians in times of rebellion or invasion. But denies habeas to any enemy combatant in times of war. By statute, so far the denial does not extend to US citizens serving enemy Jihad as unlawful enemy combatnts...but as in WWII...it is only a statutory block, not a Constitutional one.

And I believe that Woo was basically right that both the Executive and Congress fought back at the courts efforts to intrude into and run aspects of fighting war. He is correct that the other two Branches are normally reluctant to challenge judicial review, but will when it is a power grab.

*******************A brief comment on "declaration of war".

It has always been a anal centerpiece of Lefty and Libertarian claims that all war is unconstitutional without formal declaration ...so things dear to their hearts like the Draft, violating terrorist "privacy rights", additional taxes in time of war....are hence "unconstitutional".

Periodically the courts rebut the "formal declaration of war" blather, but it always gets resurrected for a new angle.

After 9/11, there were some interesting Congressional hearings and I had time to watch. One of the better sessions was between Sen Diane Feinstein who was convinced that only a formal declaration of war would legitimate going after Al Qaeda in Afghanistan and Constitutional and International Law scholars saying she couldn't do it that easily.

First, they said that the language of the Constitution was very clear that war may formally be declared only against nations, and pointed to precedent that Adams and Jefferson defined that war may be conducted against pirates or nation states well short of formal war, and followed for the next 200 years with only rare exception of "formal war declarations".

They said that "Letters of Marque" she proposed as an alternative was technically OK by pure Constitutional language - except that it is obsolete language in the Constitution that was abandoned over 180 years ago by the Treaty of Lisbon.

They then said the last formal declaration of war ever made in the world was nearly 60 years ago as the Soviets declared war against Japan in 1945. Since then, the UN Charter and ensuent diplomatic treaties and follow-up laws and conventions blocks it. To "formally declare war" more than one expert stated, would mean the US would either have to withdraw from the UN or be the 1st to violate it's Charter in that manner.

In the end, Feinstein was convinced by Joe Biden, who helped draft the AUF that he said has satisfied court review in the past as meeting the same intent as a formal declaration by Congress, satisfies war power issues, and doesn't cross international law or UN rulings.

Still some Lefties and Libertarians persist in claiming "clear language" bars any American military force usage. So all our interventions and activities since WWII are "illegal". That is a myth.

Ann, do you honestly believe he's achieved the prominence he has because he's so damned intelligent and highly trained?

It depends on what "prominence" you mean. If you just mean "being an object of protester outrage," then certainly not, any more than Dershowitz, Posner, or Epstein have achieved prominence for their keen intellects, as opposed to their habit of saying outrageous things.

But the man had respectable achievements long before the Bush administration. He's been a professor at Boalt Hall (UC Berkeley), one of the best law schools in the country, since 1993. His academic history (Harvard, Yale) is elite. He's clerked at the DC Circuit the Supreme Court. The man actually seems to have gone straight through from college to law school to clerkship, to professorship, to Supreme Court clerkship, and then (evidently) to tenure, which suggests superlative performance at each level. He's had a measure of prominence in his field precisely because he was "so damned intelligent and highly trained."

I think alot of confusion over this stems from Leftist attempts to scare their voters into opposing it - based on the lie that Bush would be allowed to round up American citizens and hold them in violation of their constitutional rights.

"The Stewart case proves the point. 28 Months for an act that can and is seen as treason to some of us. This prominently shows the civilian courts inability and incompetence in dealing with military issues, national security issues and trying terrorists and their accomplices."

Are you sugesting that Stewart should have been tried by military commission? If not, what point does that case prove, and what is the remedy?

"The Stewart case proves the point. 28 Months for an act that can and is seen as treason to some of us. This prominently shows the civilian courts inability and incompetence in dealing with military issues, national security issues and trying terrorists and their accomplices."

Are you sugesting that Stewart should have been tried by military commission? If not, what point does that case prove, and what is the remedy?

I find it fascinating that Yoo could be a law professor at the People's Republic of Berkeley and espouse the beliefs he espouses. Certainly they must try to censure him or at least fire bomb his office?

Dave said..."I find it fascinating that Yoo could be a law professor at the People's Republic of Berkeley and espouse the beliefs he espouses. Certainly they must try to censure him or at least fire bomb his office?"

I think it's similar to the way that the New York Times and the Washington Post hire David Brooks and George Will: that way they can say "what liberal media/on-campus bias? Look at these conservative columnists/professors we hire; would we do that if we were really liberal?" Which is in no way to detract from Yoo's undoubted qualifications and abilities (still less to imply that I agree with his ideas, which, in the main, I don't).

Simon said... Are you sugesting that Stewart should have been tried by military commission? If not, what point does that case prove, and what is the remedy?

From my perspective, it shows the problem with the liberal view that terrorists, like those at Gitmo, are best handled in the normal criminal system. If the Democrats had their way, we'd give a full panoply of civil rights to alien terrorists and bring them to NYC where even after a jury from a very liberal area convicts them, a judge is likely to praise their record of fighting injustice and pass out a minimum sentence.

Before somebody jumps in, I'm not saying that Stewart should have been tried by military court, but rather that civilian judges are potentially not treating serious terrorist activity seriously enough. Stewart knew clearly that she was aiding and abetting a convicted terrorist who tried and failed to kill 200,000 US citizens. He was a BAD Man. He continued to run his criminal enterprise from jail. The FEDS attempted to cut him off from operating that enterprise. Stewart willfully assisted in that ongoing criminal enterprise and was an accomplice in murders. Aid and Comfort to Mass murderers? Very progressive. A credit to her profession.

"I'm not saying that Stewart should have been tried by military court, but rather that civilian judges are potentially not treating serious terrorist activity seriously enough."

Stewart's sentence is not so clearly outrageous as Drill Sgt and others suggest. Anyone who's done any criminal defense work has to feel somewhat conflicted about her case.

On one hand, Stewart's conduct was flagrantly dishonest, endangering innocent 3d parties and further tarnishing the public's image of what defense lawyers do. Her politics are extremist and extremely misguided.

On the other hand, criminal defense is hard, thankless, and underpaid. It demands real devotion to the idea that even the worst offender deserves the best you can give. Stewart crossed the line, of course, but her life's work is now over as she can never practice law again. As an ardent true believer in her causes, that loss will punish her almost as much as the prison time.

Stewart crossed the line, of course, but her life's work is now over as she can never practice law again.

See that's the problem on two counts.

1. Her real life's work is supporting the revolution and the destruction of the US government. In interviews, she admits that she thinks it's perfectly justified for Stalin and Mao, and Uncle Ho to lock people up for life because of their unsocialist beliefs, but murderers, cop killers and terrorists are just soldiers in the revolution. The law was just a tool to accomplish goals, it wasn't the goal.

2. As revenant indicated, she wasn't visiting him to work on his appeal, she was an officer of the court who used her office to violate her oath and assist a killer in communicating to his criminal enterprise. She wasn't practicing law, the law was a pretext for her treasonous acts.

"On the other hand, criminal defense is hard, thankless, and underpaid.

Here's a thought... WHO CARES"

You should. Without an effective defense bar, prosecutors would tend to behave like a government that had no responsible opposition party.

"Can someone pls explain to me why she's not swinging from a rope?"

It's not in the federal sentencing guidelines!

Look, I'm not defending Stewart --her acts were malicioous and have done grave harm. Also, as the above posts show, she's further damaged the already poor image of defense lawyers. But her age, poor health, and career ruin should not be beyond all compassion.

Also, as the above posts show, she's further damaged the already poor image of defense lawyers. But her age, poor health, and career ruin should not be beyond all compassion.

The classic extenuation argument that you offer for Stewart would apply to the Blind Sheik. He's old, he's sick and he's a man of God. Why not let him out, he's served more than 28 months? But just like Stewart, both of them are committed to their revolution and the ultimate destruction of the US as we know it.

For all your righty blather about our lefty blather, you really need to check what the administration says about the legal and constitutional status of the "war on terror". Although they use the rhetoric of war constantly, they (including the Attorney General in Congressional hearings) have made it clear when the question is asked as a technical, legal, and constitutional matter, that we are not at war with anyone.

She wasn't practicing law, the law was a pretext for her treasonous acts.

And now it sounds like you want to lock her up for the rest of her life for her socialistic beliefs. So, considering your disdain for the civilian court system, hatred of habeas corpus, eagerness to call almost any criticism of the country of the government or capitalism "treason", and apparent unwillingness to provide defendants with competent defense attorneys, how does the justice system (if you can call it that) you envision differ from that of Mao, Stalin, or Uncle Ho? Is it because we are "better" than them. We have already adopted the torture methods of Stalin and Ho. Sleep deprivation and stress positions were favorites of the Soviets and the North Vietnamese just loved waterboarding.

One notes that the clasue is "Cases of Rebellion or Invasion", not "insurrection". And that the clause does not specify "in the United States". Did we invade Afghanistan? Okay, there's your case of invasion.

I love this. The "it's five o'clock somewhere" theory of habeas denial. "Habeas denied, I heard there were riots in North Godforsakenistan today."

"you want to lock her up for the rest of her life for her socialistic beliefs."

Freder, Stewart isn't being locked up for her Maoist beliefs, crazed though they may be. She knowingly and intentionally violated prison security rules, not to mention her ethical obligations as an attorney. Worse, she transmitted messages from a convicted terrorist to his terrorist followers. The messages may have led to acts of bloodshed.

That said, it is still possible to feel more than one emotion at the same time when thinking of Stewart. Compassion is not the same as extenuation, Drill Sgt.